New era begins for environmental law, Obama’s climate rule

Justice Antonin Scalia’s death will likely spur a tectonic shift in environmental law.

The loss of the conservative firebrand, who was found dead yesterday at a Texas resort, sent shock waves through the worlds of law and politics. Lawyers are watching to see how the departure of the Supreme Court’s strongest conservative will affect the court’s ideological balance.

Scalia, an outsized and at times bombastic personality who was equally sharp in his questions at oral arguments as he was in his opinions and dissents, reshaped conservative legal theory — bending it to focus on what the framers of the Constitution meant when it was ratified.

Some viewed the Trenton, N.J., native as U.S. EPA and environmentalists’ biggest enemy on the Supreme Court due to some of his more scathing opinions reining in federal regulations.

In the short term, his absence on the bench has major implications for a series of high-stakes energy and environmental cases the court has agreed to take on this term, since the court is now evenly split along ideological lines. Over the longer term, his death will impact how big environmental cases — including the epic battle over the Obama administration’s Clean Power Plan — play out.

President Obama has pledged to nominate Scalia’s successor, and rumors already abound about who may be on the short list to replace him. But prospects for any Obama pick clearing the GOP-led Senate this year are highly uncertain as Republican leaders are pushing to stall a confirmation until the next president takes the White House (see related story).

Scalia was beloved by critics of environmental regulations and feared by proponents of expansive federal regulation. In his three decades on the high court, he penned a series of sharply worded opinions rolling back environmental rules.

“He was a stalwart of the court, not only because of his conservative views, but the power of his expression,” said James Rubin, an attorney at Dorsey & Whitney. Rubin called Scalia the court’s “most outspoken” critic of EPA.

Todd Aagaard, vice dean and professor at Villanova University School of Law, said “regardless of whether you agree with him,” Scalia’s opinions were “very tightly reasoned, and they don’t pull any punches.” That “made people worry more about the implications of his opinions,” Aagaard added.

Scalia wrote no fewer than 10 majority opinions in environmental cases, many of which shaped the principles of the country’s major environmental laws that were still in their infancies when he was confirmed to the high court in 1986.

Perhaps his biggest impact was on the concept of standing, meaning when environmental groups and others could show they were “injured” and, therefore, qualified to challenge regulations and agency actions in court.

In three majority opinions, Scalia sharply narrowed the scope of that key legal hurdle. Most notably, in Lujan v. Defenders of Wildlife, the justice in 1992 wrote that the environmental group lacked standing to challenge Endangered Species Act protections.

The decision is still frequently cited and discussed in environmental lawsuits, and Scalia reiterated his view of standing in two subsequent majority opinions in environmental cases, one in 1998 and another in 2008.

More recently, Scalia had emerged as a foe of far-reaching EPA regulations, suggesting that the agency must consider the cost and economic impact of implementation.

Vermont Law School professor Patrick Parenteau said Scalia “basically established the principle that economic interests are presumptively in and environmental interests are not. He consistently sided with property rights over protection of wildlife, wetlands or other natural resources.”

He wasn’t seen as a solid vote against EPA, however.

Although he was very concerned about agencies “overstepping authorities,” Rubin said, “I wouldn’t call him anti-environmentalist.”

Environmental lawyers point to a major 2001 case called Whitman v. American Trucking Associations as a landmark opinion where Scalia took a pro-environment stance. In the majority opinion he penned, the court found that EPA could not consider costs when setting national limits for air pollutants.

Jonathan Adler, a professor at the Case Western Reserve University School of Law, said that opinion showed Scalia strove to separate the environmental and public health aspects of a case from the fundamental legal question.

“Justice Scalia may have written opinions very critical of environmentalist positions, but he also wrote the majority in Whitman v. American Trucking Associations, which he believed was guided by well-established principles of administrative law.”

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David Lewis

The fact that who is sitting on the Supreme Court makes such a huge difference shows a complete break down of judicial over sight. Rulings should be based on what the law says, and what the Constitution says, and not the political philosophies of those sitting on the court.

The clean air act was written for true pollutants that harm humans such as exhaust containing suit. It is very wrong to say it covers a harmless gas such as carbon dioxide. Honest judicial review would have all nine justices ruling against Obama’s Clean Power Plan. The same is true of the EPA trying to use a law intended for navigable rivers to control every body of water, including small ponds.

We just don’t have the integrity in this country for our system to work the way it was designed.

Amirlach

JayPee

I’m willing to consider your argument, but I’m disturbed of your willing to give credence to the unproven and unfoundedly assumed presumption that CO2, CH4, and any other gasses that the extremist left hates are upon their dictum alone the mythical GREENHOUSE GASSES as they define them to be.

I ask you not to buy into their argument without the proof that they have never had.
They have always had conjecture, lies and hysteria and even a low percentage of consensus ( as if that means anything ).
But they have NEVER had proof of their mythical GREENHOUSE EFFECT ( as defined by the extremist left ).

John West

A lot of what Mr. Bright-Paul is saying is true but often not in the way he thinks. The GHE for example does indeed not heat the Earth, technically it slows the cooling. It is hardly absurd and predisposes no such thing as a rigid structure in the sky.

Energy from the Sun warms the surface which in turn warms the atmosphere primarily through convection as is said, however, the surface also loses energy (cools) via radiant heat loss in the form of IR. Some of this IR is absorbed by GHG’s that excites various vibration nodes of GHG molecules which does not directly increase the temperature of the gas because the temperature of a gas is a measure of kinetic energy only, not vibrational energy. This vibrational energy may be emitted as IR or it may be transmitted through collisions to other molecules in the air possibly increasing temperature. The direction of IR emitted from such a molecule is essential random, therefore, some of that IR will invariably be directed toward the Earth. That “downwelling” IR reduces the net radiant transfer of energy from the Earth. For illustration purposes, let’ say the ground is at a temperature that radiates at 600 W/m^2 but the downwelling radiation is 300 W/m^2, therefore the net radiant energy loss of the ground would be 300 W/m^2 instead of 600 W/m^2 therefore slowing the cooling of the ground even though the ground still transfers more heat to the atmosphere through conduction the radiant heat loss is not insignificant.

Also, it is correct that one cannot technically trap heat being heat is a transfer of energy, but one can indeed trap energy. Plants convert sunlight into sugar thereby “trapping” it; storing sunlight as chemical energy. GHG’s absorb IR (light) into vibrational energy thereby “trapping” the energy; storing IR in vibrational energy. So, even though Mr. Bright-Paul is technically correct it hardly undermines the GHE phenomena being real, substantially evidenced, measurable, and much more than just opinion.

An evidenced based and scientifically sound “skeptical” position:
1) That global warming caused by increased atmospheric CO2 is a relatively small effect that represents little if any real threat to civilization, global ecology, or me personally.

2) That mitigation of global warming through mandated global emission limitations is untenable.

3) That the “issue” is being presented and examined from the wrong perspective; the problem is world hunger, the solution is increasing atmospheric CO2, the side effect is global warming, deal with the side effects at the local and regional level not by taking away the “cure” for world hunger.

4) I support “no regrets” efforts to mitigate effects of and adapt to climate change at the local and regional level as well as funding research efforts focused on realistic next generation power generation.

Why?
1.1) Doubling atmospheric CO2 increases the average GHE (greenhouse effect) by approximately 3.7 W/m^2. The average GHE is about 333 W/m^2 and varies from less than 100 to over 400 W/m^2. This small increase (~1%) is only capable of producing a very small warming effect (~1°C @ a stretch).
1.2) There’s no credible evidence that feedbacks will amplify CO2 induced warming, in fact real evidence (such as the climate’s reaction to Mt. Pinatubo eruption, daily, seasonal, NH vs. SH temperature response to changes in heat input, paleoclimate sensitivity, etc.) suggests the opposite, a dampening effect.
1.3) The ocean is a massive dynamic heat sink capable of absorbing huge quantities of energy with little (as in barely measurable) change to its characteristics.
1.4) There are various negative feedbacks limiting warming such as cloud formation that tends to cool the surface when temperature thresholds are reached under particular conditions. The temperature record compared to the climate model projections indicate these negative feedbacks amply negate the effect of EGHE.

2.1) Considering the nature of the effects of GW are not globally homogenous due to polar amplification, geological differences, whether patterns, climate, etc.; even if all the worst case scenario’s in the scientific alarm-o-sphere were absolutely true there would still be (as with any change) winners and losers. Siberia and Canada, for example, with their cold climates and steep coasts may be better off in a warmer world. How are the losers going to convince the winners to not emit CO2 into the atmosphere when it benefits them to do so?
2.2) From an ecology perspective the same is true: the alarmists claim polar bears are in trouble and tropical diseases are on the rise; so tropical diseases win. From a purely objective scientific view they shouldn’t be making the moral judgement that polar bears are good and tropical diseases are bad. That’s just an extreme example of course, I’m sure seals wouldn’t mind a few less polar bears around but we never hear about them benefiting from less polar bears due to global warming; especially since polar bears are well equipped to survive warm periods or they wouldn’t have made it through the last interglacial that was significantly warmer than now. So what happens if the seal proponents that don’t particular care for the seal’s main predator figure out that seals are better off in a warmer world, they still promote and sacrifice for keeping the planet at this arbitrarily chosen 2 degrees above pre-industrial?
2.3) Game Theory, Prisoner’s Dilemma. The benefit to a country for gaming the system would be too tempting for some to ignore. Just like VW, some will invariably cheat thereby undermining the effort of the “honest players”. The various trading schemes around the world are already replete with scams and cheats; do you really think individuals, corporations, and countries are going to magically become universally altruistic and everyone will cooperate and sing kumbaya for the next few centuries?
2.4) “The stone age didn’t end for lack of stones.” Similarly, the fossil fuel age will not end due to running out of fossil fuels. Eventually something cheaper and more convenient will be developed and replace fossil fuels whether this be thorium reactors, fusion, gravimetric generators (eh, eh), or something we haven’t even thought of yet is anybody’s guess at this point, but as sure as agriculture replaced hunting and gathering something will replace fossil fuels.
2.5) “Forbidden fruit.” The surest way to make sure people will want something bad enough to break the law to get it is to forbid it.
2.6) “Burning a hole in my pocket.” All that wealth just under the surface and we’re just going to “leave it in the ground”; yea, right.

3.1) Since I was a wee lad the numero uno problem in the world was hunger. Anecdotally, it was a somewhat jokingly unspoken obligatory requirement for every Miss USA/Universe contestant to work in solving world hunger into at least one response during the Q&A period. Until the GW scaremongering took over everyone knew the problem that humanity should solve was world hunger.
3.2) Increasing atmospheric CO2 increases primary production in many parts of the world. We’ve seen world hunger decrease as atmospheric CO2 increase as yields around the world increase in lock step with CO2 fertilization.
3.3) While some places on earth will be harder hit than others by global warming, on average the likely impact will be some inconvenience. Surely, we can take some inconvenience in order to feed the world and support those areas that have to deal with more than an inconvenience to aid them in effects mitigation and adaptation locally and regionally.

4.1) Climate changes. Seas rise and fall. Storms happen. These are facts of life in an enhanced GHE warming world, a fossil fuel aerosol induced cooling world, or pretty much any future world us and our decedents will live in.
4.2) For any particular place on earth the risks due to weather events or other climate impacts are pretty well known and understood (you don’t get hurricanes in Siberia for example). These risks can be mitigated through responsible planning and resource allocation.
4.3) Too often already global warming has been used as an excuse for politicians to avoid taking responsibility for their own incompetence and inaction.

Aido

It gets even more dodgy. The ‘anomalies’ are differences from a 30-year average, referred to as the ‘norm’.. 1930-1960, then 1960-1990, which is the current ‘norm’. If you took 1940-1970, or 1950-1980 as the ‘norm’, you’d get different figures. How anyone falls for this beats me.

Amber

Ricky C
About 60 million voters would likely agree with you . Some people like to rescue pit bulls to because they figure they can “fix ‘ them .
Donald Trump doesn’t need one of his top enemies buttering up his daughter
to help sell a scary global warming scam .
Gore , Podesta , and Steyer are the best of pals and would love nothing more than to have a direct pipeline into Trump to help bring him down . Stating the obvious ,
they mean him absolutely no good and will do every thing they can to wreck his Presidency one way or the other .
Lets hope Ivanka dedicates her influence and smarts to help real people and solve real problems .
Stein got 1 % of the vote for a reason . The global warming con game is over .